Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 154, p. 220.
Nearly thirty years of disrespect for Clemmer so far hasn’t been reason enough for the Supreme Court to revisit the issue, but the Second District Court of Appeal, Division Seven, may have just forced the Supreme Court’s hand by going out of its way to actually follow Clemmer in City of Los Angeles v. Glair, case no. B190031 (July 25, 2007), dismissing an appeal because the order denying a statutory motion to vacate is not appealable.
There’s more to this case. Though the Court of Appeal dismissed, it didn’t do so before first trying every which way to find jurisdiction, including a generous characterization of the appellant’s post-trial motion as a motion to vacate.
First, the procedural facts . . .
The City initiated the action below by filing a petition for a workplace protective order (Code Civ. Proc. § 527.8) against Glair that would require him to keep his distance from City employee Mann. The protective order issued after a bench trial. Glair, acting in pro per, filed a “Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial” six months later, which was timely because no notice of entry of the restraining order had been served. The motion was denied, and a few months later Glair appealed from the order denying the motion.
The court evaluated jurisdiction on four different grounds, and found it wanting under all of them.
First, the City (!) urged the court to construe the notice of appeal as an appeal from the underlying judgment. However, because the appeal was filed more than 180 days after the date of entry of the protective order, the court had no jurisdiction to entertain an appeal from the judgment even if it so construed the notice of appeal.
Second, the court considered the order denying the motion for judgment notwithstanding the verdict, but found the motion improper because the trial was to the judge instead of a jury. (Hot tip: if there’s no “V,” a motion for JNOV is not the way to go.) Thus, the court holds that it likewise lacks jurisdiction over the order denying the JNOV motion, but holds in the alternative that even if it has jurisdiction, “the only possible outcome would be summary affirmance of the denial of the motion for judgment notwithstanding the verdict on the ground the motion was not valid.”
Third, the court notes that the alternative basis for the motion (new trial) gets Glair nowhere because orders denying a motion for new trial are not appealable. (An order denying a new trial motion may be reviewed on appeal from the underlying judgment.)
Finally, the court liberally construes Glair’s JNOV motion as a statutory motion to vacate the judgment and enter a new judgment — even though such a construction was not urged by either party — and follows Clemmer by dismissing the appeal. The court recognizes that Clemmer has not been followed in the courts of appeal, but says that it is “compelled to follow” it. After explicitly inviting the Supreme Court to “provide further guidance and eliminate the apparent confusion in the intermediate appellate courts on this issue,” the court also finds support for the nonappealability of an order denying a statutory motion to vacate in Code of Civil Procedure section 904.1 and rule 8.108, California Rules of Court. The former explicitly authorizes an appeal from an order granting a new trial and an order denying a JNOV motion but is silent on motions to vacate. The latter identifies various post-trial motions and how their filing extends the time to appeal, but the only motion the rule explicitly contemplates appeal from is a JNOV motion.
Unless and until the Supreme Court clarifies the issue, trial counsel need to assume an order denying a Section 663 motion to vacate is not appealable, at least not in the Second District. Thus, even where no notice of entry of judgment has been served, counsel should not delay on a motion to vacate. Since a denial of the motion is not appealable, it is important to have the motion decided before the deadline for appeal from the judgment so trial counsel can still appeal from the judgment if the motion is denied.